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Sales and Delivery Terms of SATA GmbH & Co. KG, Domertalstr. 20, D-70806 Kornwestheim, Germany

The following Terms & Conditions of Sale and Delivery shall apply to contracts concluded with SATA GmbH & Co. KG (SATA), unless other agreements are made in writing:

I. Scope

  1. These Sales and Delivery Terms (“Delivery Terms”) apply to all delivery relationships with our customers (“Purchaser”), but only if a Purchaser is a merchant pursuant to the German Commercial Code, an entrepreneur (sec. 14 of the BGB [German Civil Code]), a body corporate under German public law or a German public-law special fund. They also, and particularly, apply to contracts and the sale and/or delivery of movable goods, regard-less of whether SATA itself produces such goods or purchases them from suppliers.
  2. The Delivery Terms apply exclusively; the Purchaser’s deviating, contrary or supplementary general terms and conditions are deemed to be of the es-sence only if and to the extent that SATA expressly agreed to them being applicable. There are no exceptions from this requirement to consent and it particularly applies also if the Purchaser refers to its general terms and conditions in its purchase order and if SATA fails to expressly object to them.
  3. References to legal provisions in these Delivery Terms serve clarification only. Legal provisions apply also without such clarification, unless these Delivery Terms directly amend or expressly exclude them. Individual arrangements and information included in SATA’s order confirmations prevail over these Delivery Terms.

II. Offer and order

  1. Offers are non-binding. The documentation belonging to the offer, such as illustrations, drawings, weights and measurements, are only approxima-tions, unless they are expressly designated as binding. SATA reserves the ownership rights and copyrights in cost estimates, drawings and other documentation; they must not be disclosed to third parties. SATA may disclose to third parties any plans which the Purchaser identified as being confidential only if it obtained the Purchaser’s consent.
  2. Orders represent binding offers to conclude a contract and require acceptance by SATA by submitting a written order confirmation. If SATA submits no written order confirmation, delivery of the goods to the Purchaser represents acceptance of the contract offer by the Purchaser, unless the delivered goods fail to fully comply with the quantity and quality level indicated in the order. In default thereof, delivery represents a new contract offer which the Purchaser accepts by accepting the delivered goods without objecting to this.
  3. No other agreements were made, apart from those contained in this order confirmation.

III. Deliveries; risk transfer

  1. The scope of deliveries depends on SATA’s written order confirmation. All provisions on contract execution are included in the order confirmation to which these Delivery Terms apply. Partial deliveries are permitted where this is reasonable for the Purchaser.
  2. Measurements, weights and – for small parts which are difficult to count – numbers of units, may differ on delivery by +/- 5 %.
  3. Tools, models and samples remain the property of SATA, even if these are invoiced, in whole or in part. A retention obligation shall expire two years after the last delivery. In the event of deliveries according to drawings or data of the purchaser, SATA shall be free from all third-party protective rights.
  4. Unless acceptance was agreed upon, the goods are delivered and risks are transferred on an EXW basis (Incoterms 2020) from the site in Kornwestheim (Domertalstrasse 20, 70806 Kornwestheim, Germany) to Purchasers having their seat in the European Union and on an FCA basis (Incoterms 2020) (Domertalstrasse 20, 70806 Kornwestheim, Germany) to Purchasers having their seat outside the European Union; these places also represent the place of fulfilment for deliveries and possible subsequent performance. If acceptance was not agreed upon, SATA fulfils its delivery duty by providing the goods for pick-up and notifying the Purchaser of the goods being ready for pick-up. Upon the Purchaser’s request, risk and expense, the goods will be delivered to other destinations, with the transfer of risk then being subject to sent. 1 of sec. III para. 4. In this case, SATA may itself determine the type of dispatch (particularly haulage contractors; dispatch routes; packaging). Should delivery take place at a later time, upon the Purchaser’s request, starting one month after notification of readiness for shipping, it will be charged with the costs incurred due to the storage, however, if storage takes place in the SATA factory, at least 0.5 % of the invoice amount for each month, plus VAT.
  5. If acceptance was agreed upon, the risk is transferred upon all parts of the delivery being accepted. The laws on contracts for work and labour accordingly apply to the acceptance of work and labour. Goods are deemed accepted if the Purchaser fails to accept the deliveries on time.
  6. If the Purchaser is in default of acceptance, if it fails to cooperate or if delivery by SATA is delayed for other reasons within the Purchaser’s control, SATA may request compensation for any damage resulting from this, including additional expenses (e.g. storage costs). SATA will charge lump-sum compensation of € 100.00 per calendar day, starting once it notified the Purchaser of the goods being ready for shipment. This does not affect SATA’s right to show that it incurred additional damage and its legal claims (in particular any compensation for additional expenses; reasonable damages; termination); however, this lump sum shall be offset against additional payment claims. The Purchaser has a right to show that SATA incurred no damage at all or damage to an extent falling well below the above lump sum.Should SATA indicate a delivery period when accepting orders, this period starts once the order confirmation was sent, but not prior to the Purchaser submitting any documents, permits or authorisations required and SATA receiving possible advance payments. The delivery period is approx. four weeks from contract conclusion if no such delivery period was indicated.
  7. Deliveries are subject to SATA being correctly, timely and completely provided with the components, (raw) materials or stocks required to manufacture the products. Temporary or permanent delivery disruptions with reliable suppliers regarding SATA orders of components, (raw) materials or stocks placed prior to contract conclusion represent no breach of contract if SATA informs the Purchaser in writing, immediately after becoming aware of imminent delivery disruptions, about the circumstances and the presumed period during which delivery duty fulfilment is affected by this. Within a one-week period from receiving such notification, the Purchaser may withdraw from or terminate the contract without notice. Subsequently, all services provided up to that moment will be refunded. If the Purchaser fails to terminate/withdraw from the contract, SATA’s duty to perform shall be suspended after that one-week period and the delivery dates/deadlines shall be extended by the period of temporary prevention from deliveries. If this prevents the supplier from fulfilling its duty to perform for a period beyond the above extension period or for an uninterrupted period of more than one month, both Parties may withdraw from/terminate the contract.
  8. The Purchaser may withdraw from the contract concerning the delayed deliveries if SATA is culpably in default and an adequate grace period set by the Purchaser expired fruitlessly. The legal consequences of delay depend on valid statutory provisions. Upon SATA’s request, the Purchaser undertakes to declare, within an adequate time limit, whether it withdraws from the contract, demands damages instead of performance or insists upon performance in cases of delayed deliveries.

IV. Prices; payment terms

  1. All prices are before the legal value-added tax and shall apply ex-works Kornwestheim. They do not include packaging, freight, postage and insurance costs. For individual orders for spare parts, repairs and custom-made goods, small-volume surcharges may be invoiced.
  2. Invoices for repairs, tools and development costs are immediately payable without any deductions. All other invoices are due for payment, without any deductions, within 14 days after invoice receipt, unless the Parties agreed otherwise. The legal provisions apply to default of payment.
  3. The Purchaser has a right to offsetting against counterclaims or asserting a right of retention if such counterclaim is undisputed, was legally determined to exist by a court or is ready for decision.
  4. SATA makes use of the transitional provisions pursuant to Section 27 para. 39 sentence 1 no. 1 UStG-E and sends invoices to the customer in the formats previously used, such as on paper or in another electronic format, until the necessary technical requirements for the introduction of the e-invoice have been fully met.

V. Reservation of ownership

  1. SATA reserves ownership of items delivered by SATA until all its present and future claims based on existing business relationships were completely paid (“Secured Claim”).
  2. Prior to complete payment of Secured Claims, any goods subject to reservation of ownership must not be pledged or assigned to third parties by way of security. In the event of pledging, seizure or other disposals by third parties, the Purchaser shall immediately notify SATA thereof. This also applies to applications for the institution of insolvency proceedings.
  3. If the Purchaser breaches a contract, in particular if it is in default of payment, SATA may – pursuant to legal provisions – withdraw from the contract and/or request all goods subject to reservation of ownership to be returned. A request for return, assertion of ownership of pledging by SATA does not entail a declaration of withdrawal from the contract. SATA may rather request that the goods be returned only and reserve the right to withdraw from the contract. When taking the goods back in possession, SATA may sell the goods at its free disposal and in the best possible manner after previously warning and setting an adequate grace period for the Purchaser. The selling proceeds will be offset against SATA’s claims after deducting reasonable sales costs.
  4. When selling the goods subject to reservation of ownership prior to complete payment of Secured Claims, the Purchaser assigns, right from the beginning, its claims against its own consumers to the amount of the invoice value of the goods subject to reservation of ownership and any claims resulting from ownership which the Purchaser reserved itself; SATA accepts such assignment. The Purchaser’s duties under sec. V para. 2 also apply to assigned claims. In addition to SATA, the Purchaser is still entitled to collect any receivables. SATA undertakes not to collect any claims for as long as the Purchaser fulfils its payment duties towards SATA, it is still able to perform and SATA asserted no claims pursuant to sec. V para. 3. However, if any of this is the case, SATA may request that the Purchaser notify SATA of the claims it assigned and the debtors’ names, provide all information required for collection, hand over all related documents and inform the debtors about such assignment. In addition, SATA may revoke the Purchaser’s authorisation to selling.
  5. Following a request by the Purchaser, SATA shall release the securities to which it is entitled in accordance with the terms above at SATA’s discretion if their realisable value exceeds the claims to be secured by more than 10 %.

VI. Incoming goods inspection, complaints and warranty for defects

  1. The Purchaser shall check the goods immediately after receiving them in compliance with legal provisions. It shall immediately, but no later than seven days from receiving the delivery, notify SATA in writing of any visible defects with delivered goods; hidden defects shall be reported in writing immediately and no later than seven days after detecting them. If the Purchaser fails to correctly inspect the goods and/or report any defects, SATA’s liability for defects reported late or not correctly is excluded as provided for under the law.
  2. If the Purchaser complains about the delivered goods, it shall grant SATA a right to review such a complaint, particularly regarding damaged goods and its packaging.
  3. SATA is not liable for damage to the goods due to natural wear and tear, unsuitable or improper use, faulty assembly or commissioning, excessive use or improper alteration or repairs by the Purchaser or third parties, improper cleaning methods or electrochemical or electrical influence, unless the reasons of such damage falls within SATA’s control.
  4. Unless the following provides otherwise, legal provisions apply to the Purchaser’s rights regarding material or legal defects (including wrong/short deliveries; improper assembly/installation; defective instructions). This in no case affects the statutory provisions on compensation for expenses with final deliveries of newly manufactured goods to consumers (supplier’s recourse), unless the Parties agreed upon equivalent types of compensation
  5. With goods containing digital elements or other digital contents, SATA is obliged to provide and, if applicable, update such digital contents only if a quality agreement expressly states this. Such duty may particularly result from product descriptions, the manufacturer’s specifications or public notifications in catalogues or on SATA’s website.
  6. At its own expense and discretion, SATA may rectify defects within a reasonable period set by the Purchaser by either removing such defect or be de-livering goods free from defects. If the type of subsequent performance selected by SATA is unacceptable for the Purchaser, the latter may reject this. SATA may refuse subsequent performance in compliance with legal provisions. SATA may subject subsequent performance to the Purchaser paying the outstanding purchase price. However, the Purchaser may withhold a share of the purchase price which is reasonable considering the extent of the defect. The Purchaser shall grant SATA the time required and an opportunity to subsequently perform. In the case of replacement deliveries, the Pur-chaser shall return to SATA, upon its request, the defective goods pursuant to the law; it shall have no claim for return. Subsequent performance does not include disassembly, removal or uninstallation of defective goods or the assembly, fixing or installation of goods free from defects if SATA had not been obliged to provide these services in the first place. The Purchaser’s claim for compensation of assembly/disassembly costs is not affected by this. SATA will bear and/or reimburse any costs required for inspection and subsequent performance, e.g. transport, road, labour and material costs and, if applicable, disassembly and assembly costs, in compliance with the law and these Delivery Terms if a defect actually exists. Otherwise, SATA may request compensation from the Purchaser for any costs resulting from unjustified requests for defect rectification if the Purchaser was aware or, due to negligence, unaware of there being no defect.
  7. In urgent cases, e.g. risks to operational safety or prevention of disproportionate damage, the Purchaser has the right to rectify the defect itself and to request compensation from SATA for any expenses required in objective terms. The Purchaser shall immediately inform SATA about it rectifying any defects, if possible even before that. This right to rectify any defect itself does not exist for the Purchaser if SATA was entitled to refuse subsequent performance in compliance with the law.
  8. Even in the case of defects, the Purchaser’s claims for damages or compensation of wasted expenditure only exist pursuant to sec. IV; they are excluded in all other cases.

VII. Liability; limitation period

  1. A duty of SATA to pay damages is generally excluded. This does not apply to
    a) damage resulting from injuries to life, limb or health due to intentional or negligent violations of duties by SATA or any of their legal representatives or vicarious agents;
    b) damage caused by intentional or negligent violations of duties by SATA or any of their legal representatives or vicarious agents;
    c) damage caused by violations of essential contractual duties. An essential contractual duty particularly exists if its fulfilment is necessary for proper performance of the contract and if the contractual partners may regularly rely upon this duty being fulfilled. However, SATA’s liability in this case is limited to compensation for typical damage foreseeable at the time of contract conclusion;
    d) damage caused by violations of any guarantees granted by SATA;
    e) claims from compulsory legal liability, e.g. according to the German Product Liability Act [Produkthaftungsgesetz]; or
    f) maliciously concealed defects.
  2. The limitations of liability resulting from sec. VI para. 1 also apply towards third parties and to violations of duties by individuals (also in their favour) for whose culpability SATA is liable under the law.
  3. The provisions under sec. VI paras. 1 and 2 do not affect the legal provisions on the burden of proof.
  4. The Purchaser may withdraw from or terminate the contract due to violations of duties only if SATA is responsible for that violation of duties. A right for the Purchaser to freely terminate the contract (particularly pursuant to sections 650 and 648 of the BGB) is excluded; the legal requirements and consequences apply to all other cases.
  5. In deviation from sec. 438(1)(3) of the BGB, the limitation period for claims from material and legal defects is one year from the time of risk transfer and from the time of acceptance if that was agreed upon. The limitation period for contractual and non-contractual claims for damages is one year. The legal general limitation period under sections 438(1)(1), 438(3), 444 and 445b of the BGB, limitation of the Purchaser’s claims for damages pursuant to sec. VI para. 1 lit. a) and lit. b) and limitation pursuant to the German Product Liability Act is not affected by the provisions under sec. VI para. 5 sent. 1 and 2.
  6. Sec. 203 of the BGB (Suspension of Limitation in the Case of Negotiations) does not apply to any claims resulting from or related to this contractual relationship.

VIII. Closing provisions

  1. Should one of the above provisions be invalid for any reason whatsoever, all other provisions shall remain unaffected.
  2. If the Purchaser is an entrepreneur pursuant to the German Commercial Code, a body corporate organised under German public law or a German public-law special fund, SATA’s headquarters, currently located in Kornwestheim (Germany) is the exclusive venue – also on international level. SATA may also bring charges at the Purchaser’s general venue.
  3. This contract is governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods or any international uniform laws.
  4. There are no ancillary agreements related to these Delivery Terms or other contracts; amendments of and supplements to these Delivery Terms or other contracts shall be made in writing. This applies also to adding, amending or suspending the written form requirement in terms of the above sentence.

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Stand: 07/2022